from them. This does not, however, extend to conclusions of law,35 The pleading of matter in avoidance may be dispensed with when the opposite party has exhibited enough to show that he cannot recover.36 It is held that, when a bill omits certain parts of a contract, the answer may set out fully the negotiations by way of defense.37 If a defense to be made to the bill consists of a variety of circumstances, so that it is not proper to be offered by way of plea, or if it be doubtful whether a plea will hold, the defendant may set forth the whole by way of answer, and pray the same benefit of so much as goes in bar as if it had been pleaded to the bill.38 If a defendant can offer a matter by plea which would be a complete bar, but has no reason to protect himself from any discovery sought by the bill, and can offer circumstances which he believes to be favorable to his case, and which he could not offer together with a plea, he may set forth the whole matter in the same manner. Thus, if a purchaser for a valuable consideration, clear of all charges of fraud or notice, can offer additional circumstances in his favor, which he cannot set forth by way of plea, or of answer to support a plea, as, for example, the expending of a considerable sum of money in improvements with the knowledge of the complainant, it may be more prudent to set forth the whole by way of answer than to rely on the single defense by way of plea, unless it is material to prevent disclosure of any circumstances attending his title. While it is necessary to use in an answer such a degree of certainty as will inform the complainant of the nature of the case to be made against him, it is not necessary that the same accuracy should be observed in an answer as is required in the bill;40 but important and cardinal matter in a defense should be in

351 Barbour, Ch. Pr. 138; Fitzpatrick v. Beatty, 6 Ill. 454.

36 Fowler v. Lewis, 3 A. K. Marsh. (Ky.) 443.

37 Grey v. Bowman (N. J. Eq.) 13 Atl. 226, citing Adams, Eq. 322.

38 Mitford, Eq. Pl. 308; 1 Barbour, Ch. Pr. 138, 139; Norton v. Turvill,

2 P. Wms. 144.

39 1 Barbour, Ch. Pr. 139;

401 Barbour, Ch. Pr. 138; King, 9 N. J. Eq. 44.

Mitford, Eq. Pl. 308.

Jenkins v. Greenbaum, 95 Ill. 11; King v.

It is

some way alleged, and not be left to inference merely."1 only at the hearing that the defendant will be entitled to the same advantage of defense by answer that he would have had, had he adopted the more concise mode of defense by demurrer or plea. 42 Where a fact sufficient to defeat the bill appears on its face, the defendant need not set up such fact by way of defense in his answer.43

§ 298. Joinder of defenses in answer.

More than one defense may be presented in the answer, but each should be separately and clearly alleged, without condition or undefined qualification. While the answer may set up any number of defenses, they must not be inconsistent with each other; but if it either sets up inconsistent defenses, or an alternative of inconsistent defenses, it is bad.46 Where it sets up two inconsistent defenses, the defendant will be deprived of the benefit of either, and the complainant be entitled to a decree.*7 Where inconsistent defenses are interposed, and no exception is taken on that account, and on the hearing one is found to

41 Gates v. Adams, 24 Vt. 70.

421 Barbour, Ch. Pr. 139; Wray v. Hutchinson, 2 Mylne & K. 235; Milligan v. Mitchell, 1 Mylne & C. 433; Mathews v. Roberts, 2 N. J. Eq. 338.

43 Child v. Brace, 4 Paige (N. Y.) 309.

44 Graham v. Mason, 4 Cliff. 88, Fed. Cas. No. 5,671. See Sharp v. Carlile, 5 Dana (Ky.) 487. Under United States Equity Rule 39, defendant may join in his answer all matters of defense in bar to the merits of the bill. Holton v. Guinn, 65 Fed. 450. A defendant may. by his answer, set up any number of defenses, as a consequence of the same state of facts, which his case will allow or the ingenuity of his legal advisers may suggest. 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 731; Stone v. Moore, 26 Ill. 165.

451 Barbour, Ch. Pr. 138; Hopper v. Hopper, 11 Paige (N. Y.) 46; Stone v. Moore, 26 Ill. 165.

461 Barbour, Ch. Pr. 138; Commercial Bank of New Jersey v. Reckless, 5 N. J. Eq. 650; Hawley v. Cramer, 4 Cow. (N. Y.) 717; Jesus College v. Gibbs, 1 Younge & C. 145.

471 Barbour, Ch. Pr. 138; Ozark Land Co. v. Leonard. 24 Fed. 660. See, however, Nagle v. Edwards, 3 Anst. 702; Jesus College v. Gibbs, 1 Younge & C. 145. See, for application of the rule in the federal courts, Ozark Land Co. v. Leonard, 24 Fed. 660.

be untrue and the other established, the decree will not be reversed on account of such untrue and inconsistent defense.48 Sometimes the court will, where, from redundant expression or other verbal inaccuracy, a defense has been rendered inconsistent, when it was evidently not intended to be so, either reject the redundant expressions as surplusage, or direct them to be struck out. But such indulgence is confined to cases of verbal inaccuracy, only, which would not have embarrassed the complainant in the conduct of his case.49 A defendant will not be precluded from denying the complainant's general title, and also insisting that, in case the complainant establishes his title, he is precluded from recovery by some other circumstance which would equally serve to preclude him or any other person in whom the title might be vested.50

§ 299. Defense of bona fide purchase.

The defense by one that he is a purchaser for value and without notice may be made by answer, as well as by plea;51 but the defendant must answer all the allegations in the bill tending to show the conveyance to be fraudulent and only colorable.52 He must fully and explicitly deny notice,53 and allege payment of the purchase money. 54

48 Scanlan v. Scanlan, 134 Ill. 630, 25 N. E. 652.

49 Ellis v. Saul, 1 Anstr. 332.

50 Carte v. Ball, 3 Atk. 496.

51 Donnell v. King's Heirs & Devisees, 7 Leigh (Va.) 393; Rorer Iron Co. v. Trout, 83 Va. 397, 2 S. E. 713, 5 Am. St. Rep. 285, extensively reviewing the authorities; Fox v. Coon, 64 Miss. 465, 1 So. 629. Mr. Justice Story entertains a different view, saying: "It is now settled that a defendant cannot, by answer, set up, as a defense to a bill for discovery and relief, that he is a bona fide purchaser for a valuable consideration without notice, but, if he means to insist upon it, he must do it by way of plea, because, if he answers at all, he must answer fully." Story, Eq. Pl. § 847, citing Portarlington v. Soulby, 7 Sim. 28; Ovey v. Leighton, 2 Sim. & S. 234; Gordon v. Shaw, 14 Sim. 393. See Mitford, Eq. Pl. 307, note.

52 Wyckoff v. Sniffen, 2 Edw. Ch. (N. Y.) 581.

53 Woodruff v. Cook, 2 Edw. Ch. (N. Y.) 259; Grimstone v. Carter, 3

$300. Laches and statute of limitations.

The defendant may set up the bar of the statute of limitations by answer,55 and the defense of laches may also be so presented.58

If the defendant, by his answer, admits an agreement, but does not insist upon the defense of the statute of frauds, such defense is waived;57 but the defendant may admit the agreement, and plead the statute as a defense.58 It is held in many juris

Paige (N. Y.) 421; Minor v. Willoughby, 3 Minn. 225 (Gil. 154); Rorer Iron Co. v. Trout, 83 Va. 397, 2 S. E. 713.

54 Cummings v. Coleman, 7 Rich. Eq. (S. C.) 509, 62 Am. Dec. 402. Where a defendant, by plea or answer, claims protection as a bona fide purchaser of land without notice, he must state the deed of purchase, its date and contents, briefly, and that the vendor was seised in fee and in possession; the consideration must be stated, with a distinct averment that it was bona fide and truly paid, independently of the recital in the deed; notice must be denied previous to and down to the time of paying the money and the delivery of the deed; and, if notice is specially charged, the denial must be of all circumstances referred to from which notice can be inferred, and the answer or plea must show how the grantor acquired title. Boone v. Chiles, 10 Pet. (U. S.) 177; Ledbetter v. Walker, 31 Ala. 175; Miller v. Fraley, 21 Ark. 22. See, also, Servis v. Beatty, 32 Miss. 52, where it is said that the same strictness is not required in case of an answer, and that the answer need not aver that the purchase money was all paid before notice of the defect in title. But it has been held that, when a purchaser for value without notice relies on this defense in his answer, he must set out the defense with all the certainty and requisites of a plea. High v. Batte, 10 Yerg. (Tenn.) 335.

55 Pierce v. McClellan, 93 Ill. 245; Highstone v. Franks, 93 Mich. 52, 52 N. W. 1015. See Chapin v. Coleman, 11 Pick. (Mass.) 331.

56 Harris v. Cornell, 80 Ill. 54; Snow v. Boston Blank-Book Mfg. Co., 153 Mass. 456, 26 N. E. 1116. See, also, supra, §§ 264, 275. Like strictness and particularity in pleading the statute of limitations are not required in an answer as in a plea. Van Hook v. Whitlock, 2 Edw. Ch. (N. Y.) 304.

57 Cozine v. Graham, 2 Paige (N. Y.) 177; Champlin v. Parish, 11 Paige (N. Y.) 405; Walker v. Hill's Ex'rs, 21 N. J. Eq. 191, 203. See supra, § 265.

58 Ashmore v. Evans, 11 N. J. Eq. 151.

dictions that where the defendant, in his answer, denies that any such agreement as is alleged in the bill was made, his denial is as effective for letting in the defense as if the statute of frauds had been pleaded.59 But the rule is otherwise in some states, it being held that the statute must be specifically set up.60 The defense that an agreement, admitted to have been made, is not in writing, must be pleaded or set up in the answer as a fact, and distinctly put in issue. To aver that the contract is void in law, and that the defendant is not bound to perform the same, is insufficient.61

§ 302. Pleading a statute.

In setting up a defense under a public statute, it is sufficient to state the facts which bring the case within the operation of the statute. The statute need not be set forth.62

§ 303. Usury.

A general charge of usury in the answer will amount to nothing, unless facts are alleged showing wherein the usury consists.63

59 May v. Sloan, 101 U. S. 231; Busick v. Van Ness, 44 N. J. Eq. 82, 12 Atl. 609; Bonham v. Craig, 80 N. C. 224; Coles v. Bowne, 10 Paige (N. Y.) 526. Where the complainant sets up an agreement which, by the statute of frauds, would be invalid, the legal presumption is that it was in writing, unless the contrary is stated in the bill; and if the agreement as stated in the bill is denied by the answer, the complainant must produce legal evidence of the existence of such an agreement upon the hearing, which can only be done by producing a written agreement, duly executed according to the provisions of the statute. Coles v. Bowne, 10 Paige (N. Y.) 526, citing Cozine v. Graham, 2 Paige (N. Y.) 177; Ontario Bank v. Root, 3 Paige (N. Y.) 478.

60 Hull v. Peer, 27 Ill. 312.

61 Vaupell v. Woodward, 2 Sandf. Ch. (N. Y.) 143.

62 Bogardus v. Trinity Church, 4 Paige (N. Y.) 178; Mitford, Eq. Pl. 258; Beames, Pleas in Eq. 164. See supra, § 266.

63 McKim v. Mason, 2 Md. Ch. 510; Mosier v. Norton, 83 Ill. 519; Jenkins v. Greenbaum, 95 Ill. 11; Hannas v. Hawk, 24 N. J. Eq. 124; Suydam v. Bartle, 10 Paige (N. Y.) 94. See, also, for answers asserting usury, New Orleans Gas Light & Banking Co. v. Dudley, 8 Paige